U.S. v. Tillem
| Decision Date | 19 June 1990 |
| Docket Number | 675-677,D,682,680,Nos. 658,COHEN-DEUTSC,679,s. 658 |
| Citation | 906 F.2d 814 |
| Parties | 30 Fed. R. Evid. Serv. 528 UNITED STATES of America, Appellee, v. Moe TILLEM, et al., Defendants. Appeal of Thomas OVERTON, Desmond Larrier, Astley Campbell, Elissa Cohen-Deutsch, a/k/a "Lisa", Bernard Taynor, Albert Simms, Harvey Cohen, Carl Bower, Defendants-Appellants. UNITED STATES of America, Appellee-Cross-Appellant, (Re: 89-1225) v. Moe TILLEM, et al., Defendants. Appeal of Elissaefendant-Appellant Cross-Appellee. (Re: 89-1225). ockets 89-1139, 89-1146, 89-1181, 89-1224, 89-1225, 89-1297, 89-1376. |
| Court | U.S. Court of Appeals — Second Circuit |
Daniel H. Murphy, II, New York City, for defendant-appellant Albert Simms.
James C. Sherwood, New York City (Kathyrn Keneally, Kostelanetz Ritholz Tigue & Fink, New York City, of counsel), for defendant-appellant Carl Bower.
Lloyd Epstein, New York City (Epstein, Hus & Weil, New York City, of counsel), for defendant-appellant Desmond Larrier.
Barry Gene Rhodes, Brooklyn, N.Y., for defendant-appellant Thomas Overton.
Brian Barrett, New York City (Howard W. Goldstein, Mudge Rose Guthrie Alexander & Ferdon, New York City, of counsel), for defendant-appellant Astley Campbell.
Michael Shapiro, New York City (Barry I. Slotnick, Mark M. Baker, Slotnick & Baker, and Lori E. Mann, Law Graduate, on the brief, New York City, of counsel), for defendant-appellant Bernard Taynor.
Sean F. O'Shea, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., David C. James, Emily Berger, and Eric Friedberg, Asst. U.S. Attys., of counsel), for appellee the U.S.
Before VAN GRAAFEILAND, CARDAMONE and ALTIMARI, Circuit Judges.
This appeal focuses on employees of the New York City Department of Health who inspect Manhattan restaurants to determine whether they comply with the City Health Code. Before us are six defendants all of whom, except for one, were employees of the Department of Health, and all of whom were convicted of extorting restaurant owners to pay them money or give them free meals in order to pass inspection. What is revealed in the record is not an indictment of City restaurants, but rather the corrupt action of a group of City inspectors who, for example, would order an eight course meal in an expensive restaurant and then leave without paying. Honesty was not their daily fare.
Appellants, Carl Bower, Albert Simms, Thomas Overton, Desmond Larrier and Astley Campbell appeal judgments entered in the United States District Court for the Eastern District of New York (Bartels, J.), on January 18, 1989, following jury verdicts convicting them for extortionate activity violative of the Hobbs Act, 18 U.S.C. Sec. 1951 (1988), and engagement in a racketeering enterprise violative of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Secs. 1962(c) & (d) (1988). Appellant Overton also appeals his sentence and appellant Bernard Taynor appeals his sentence, imposed following his guilty plea to a violation of the Hobbs Act. With the exception of the one non-employee of the Department, all the convictions are affirmed.
The appellants are among 46 individuals arrested after a lengthy investigation into a scheme of corruption that took place in the New York City Department of Health (City Health Department or Department). Twenty-eight individuals were charged with extortionate conduct in the original indictment, of whom 26 pled guilty, including appellant Taynor, pursuant to plea agreements with the government. Nine defendants--five of whom together with Taynor constitute the present six appellants--were charged in a superseding indictment, Cr. No. 88 Cr 219(S-2), with inter alia engaging in a pattern of racketeering involving extortionate activity violative of the Hobbs Act. The defendants fell into two categories: those who worked for the City Health Department and those who were restaurant "consultants" that assisted restauranteurs in passing the Department's inspections. All of the present appellants, except Campbell, were employed by the City Health Department.
The City Health Department is the municipal agency charged with enforcing the New York City Health Code in City restaurants. The present conspiracy involved all aspects of the Department's operation, which is separated into divisions that oversee various aspects of a restaurant's operation. The superseding indictment alleged that the Bureau of Field Services, the Borough Inspection Unit, the Plans and Equipment Unit of the Bureau of Technical Services, the Administrative Tribunal, the Food Sampling Unit and the Code Enforcement Unit, constituted "enterprises", all of which engaged in a pattern of racketeering activity within the meaning of RICO.
Each of these divisions performs a different function in the Department's operations. The Plans and Equipment Unit, where appellant Larrier was employed, initially reviews the plans for restauranteurs seeking to open a new facility. Once a restauranteur receives approval from this Unit, the Department sends a representative of the Bureau of Field Services to conduct an on-site "pre-operational" or "pre-permit" inspection. After a restaurant receives an operating permit and is open to the public, the Bureau of Field Services performs periodic inspections, and the Borough Inspection Unit makes inspections following consumer complaints. If a restaurant fails two inspections conducted by either the Bureau of Field Services or the Borough Inspection Unit, a member of the Code Enforcement Unit conducts a final inspection. Members of the Code Enforcement Unit conduct final inspections of restaurants in pairs and have the power to close a facility for failure to pass final inspection. The City Health Department also conducts inspections through the Food Sampling Unit in the Bureau of Technical Services, which takes food samples from restaurants and brings them to a laboratory to test for bacterial contamination. After two unsatisfactory food sampling tests, the Food Sampling Unit may require that a restaurant remove a food item from its menu.
The evidence at trial established that inspectors used a variety of methods to induce restauranteurs to pay them money, give them free meals or provide them with other services in exchange for passing the restaurant during inspections. The inspectors--and the supervisors with whom they shared the extorted monies--developed their own parlance for these activities. Thus, for instance, the phrase "bite the bullet" meant that the inspector should not take any money from a restaurant because funds had already been paid over; "cup of coffee" or "he will buy you a cup of coffee" signified that the restauranteur would pay more than the going rate; "good stop" indicated that the restaurant would pay a considerable sum for inspection approval; the "open draw[er] policy" reflected the practice of inspectors placing a share of their ill-gotten gains into the desk drawers of their supervisors; and "friends" referred to persons from whom an inspector had previously received a payoff of money, meals or services.
At trial the government presented extensive evidence on the extortionate activities of the appellants Bower, Simms, Overton and Larrier. Robert Levine, a former inspector on Staten Island, testified that he accompanied Bower on inspections, reinspections, and final inspections of at least 11 restaurants from 1986 to 1988, during which they received money and meals from restauranteurs in exchange for their passing the restaurant after inspection. He testified that Bower negotiated for receipt of specific sums of money in exchange for giving a restaurant favorable inspection regardless of whether it failed to meet Code requirements. Dean Nanjad, another former inspector, testified that during the four weeks in 1987 that he worked with appellant Simms in the Code Enforcement Unit they received money from at least eight restaurants that they passed after inspection, many of which had conditions that violated the Code. Simms, he testified, would negotiate for payment from the owner while he conducted an inspection of the premises. On at least two occasions, Nanjad testified, Simms solicited payment from restauranteurs notwithstanding that Nanjad's inspection revealed them to be free of Code violations. Another inspector, Harvey Dlugatch, indicated that he accompanied appellant Overton, a member of the Food Sampling Unit, to at least nine restaurants where they received money in exchange for their acceptance of "compromised" samples--food samples prepared separate from the remainder of the restaurant fare--which they brought to the laboratory for testing. Dlugatch indicated that they received the money primarily from restauranteurs with whom they had dealt before and who were aware that payment was essential for the acceptance of compromised samples. When they spoke to an "innocent" manager, they "hinted" that payment was necessary for them "to try to do the best [they could] for [the restaurant.]"
The government also produced evidence corroborating the extortionate activities of Larrier, a member of the Plans and Equipment Unit. Sam Witlow, an investor in a group of delicatessens, testified that Larrier indicated that he would take care of the paperwork for two new delis if Witlow paid him $200 each. Larrier had indicated this arrangement by rubbing his thumb and forefinger together. A short time after this transaction, Larrier approved the initial permits for six or seven delis that were operating without proper permits in exchange for Witlow's payment of $200 per restaurant. Witlow advised two other restauranteurs of Larrier's arrangement, and Larrier demanded $300 for each restaurant for his approval of their plans. In addition, Steve Vassilakos, a restaurant consultant, testified that Larrier asked him for "loans"...
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